News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

The Third Circuit is about to be the first federal appellate court flipped by Trump, but that’s not nearly as significant as it sounds

With Paul Matey on track to be confirmed as the Third Circuit’s newest judge this afternoon, there’s been a flurry of recent coverage (most recently this story by Patrick Gregory for Bloomberg Law) about how the Third Circuit is the first of the circuits to flip from a Democratic majority to a Republican one. I want to briefly explain why I believe this flip is more symbolic than meaningful.

Let’s first get clear about what “flip” they’re referring to. The Third Circuit has 14 seats, which means that at full strength it has 14 active judges plus an undefined number of senior judges. When President Trump took office, it had 12 active judges. Of these 12, 7 were nominated by Democratic presidents (Judges McKee, Ambro, Greenaway, Vanaskie, Shwartz, Krause, and Restrepo) and 5 by Republican presidents (Chief Judge Smith and Judges Fisher, Chagares, Jordan, and Hardiman). Since then, Judge Fisher took senior status and Judge Vanaskie retired, while Judges Bibas and Porter have been confirmed and Matey is about to be. Once Matey joins the court, then, there will be 6 active judges nominated by Democratic presidents and 7 by Republicans, with 1 opening left.

Those changes, I suspect, mean the Third Circuit has become somewhat more conservative since Trump took office. That is, going from [Fisher + Vanaskie + 2 vacant seats] to [Bibas + Porter + Matey + 1 vacant seat + senior Fisher] probably moves the court to the right overall.

That said, I believe the actual impact of that shift will be modest, and that it will have little to do with the so-called flip in majority control. I believe this for a number of reasons:

only a minuscule number of cases are decided en banc;

since 2010, a grand total of four Third Circuit en banc cases were decided by one- or two-vote majorities, and the conservative position prevailed in by far the most high-profile of them, the Binderup Second Amendment case;

almost all circuit appeals are decided by three-judge panels, so there’s a large element of chance in whether any particular panel reflects the court’s overall balance;

panels are composed of active, senior, and visiting judges, and the Third Circuit has eight senior judges regularly sitting;

6 of the court’s 8 sitting senior judges were nominated by Republican presidents, versus only 2 nominated by Democrats;

of the three nominated by President Trump, only Judge Porter had a notably ideological paper trail, and

most importantly, the party of the nominating president is a substantially less-reliable predictor of circuit judges’ voting than it is of Supreme Court justices’ voting.

A flip in the Supreme Court’s majority would be a big deal. All nine justices decide every case, so a majority flip could alter the outcome of every close one. But circuit courts function entirely differently, so an active-judge-majority flip will change the outcome in a vastly smaller proportion of its cases, and it will do so demonstrably and visibly even less.

To be clear, I’m not suggesting that commentators spotlighting the Third Circuit’s flip are wrong or disingenuous. Politically, it encapsulates the rapidly changing composition of the federal judiciary under President Trump and Senate Majority Leader McConnell. In my view, reporting and commenting on the Third Circuit’s flip is appropriate. But, for lawyers practicing in the Third Circuit, it is important to realize that the flip means little for them.

The Third Circuit has been a centrist court for decades, and I don’t expect this flip to change that.